Opinion
SUPERIOR COURT Civil Action Docket No. AP-18-056
01-21-2020
JOHN BARTH, Plaintiff, v. TOWN OF WATERBORO et al., Defendants.
STATE OF MAINE
YORK, ss. DECISION AND ORDER ON RULE 80B APPEAL & PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
(COUNT I)
John Barth filed this action against the Town of Waterboro ("Town"), the Town Manager, Gary Lamb, and ten unnamed individuals ("John Does 1-5" and "Jane Does 1-5"). The complaint, denominated as "Appeal of ZBA Decision and Complaint for Damages," alleges that in 2018 the Town unlawfully denied his application for a building permit to continue construction on a residence begun in 2005 (Count I). It further alleges that the Town's failure to renew his permit amounts to a violation of various state and federal constitutional rights, including an unconstitutional taking of his property without just compensation (Count II) and that Lamb, acting in his official capacity, abused his office and conspired with others to deprive plaintiff of his rights (Count III). The complaint seeks reversal of the Town's denial of his application for a building permit and an award of damages.
Although the complaint alludes to a number of legal theories within the three counts, they can be distilled down to these contentions.
Pending before the court at this time are several motions, including plaintiff's motion for summary judgment and defendants' motion to dismiss (both as to Count I). The court heard argument on these motions as well as on the merits of Count I. For the reasons set forth below, plaintiff's motion for summary judgment is denied and defendants' motion to dismiss is granted.
For purposes of this order, "defendants" refers to the Town of Waterboro and Gary Lamb.
I. Facts
As discussed above, plaintiff has not complied with Rule 80B(e)'s requirements regarding preparation and submission of the record for review of his appeal. Consequently, two sets of documents purporting to be the record before the Board have been filed, one by plaintiff and the other by defendants. Though substantially the same, they are not identical. Because defendants' submission is sequentially paginated (as is standard practice for ease of reference), record citations herein are made to the record filed by defendants.
On September 9, 2005, the Town code enforcement officer ("CEO") Patty Berry issued a building permit to plaintiff authorizing construction of a "house and bunk house accessory structures" on Ossipee Overflow Island in Lake Arrowhead in North Waterboro, Lot 84 on Tax Map 13. (R. 2, 31.) The property lies within the Agricultural and Residential zoning district and is now owned by Lenox School, Inc., an entity established and controlled by plaintiff. (R. 1.)
In November 2017, Barth conveyed title to the property to The Lenox School, Inc., a nonprofit corporation. (R. 1.) Barth is "president, sole remaining member of the Board of Trustees, and resident agent" of the corporation, (Pl.'s Br. at 4.) Under Section 2.08 of the Town's ordinance, Barth had standing to appeal.
Section 2.03 of the Waterboro Building Ordinance provides that permits expire after one year from the date of issuance and requires that construction be completed within two years. (R. 47.) The 2005 permit allowed for a single, two-year extension. (R. 2.) On January 24, 2007, CEO Berry sent Barth a letter notifying him that his 2005 building permit had expired. (R. 32.) Barth did not file to renew the permit. (R. 1, 3.) Although he contends that Berry "verbally" renewed the permit, there is no evidence in the record substantiating or confirming an informal renewal.
On April 13, 2012 and again on August 22, 2012, the Town's new CEO, Mark Mitchell, sent Barth letters informing him that his permit had expired and that he would need to reapply to continue construction. (R. 33, 34.) Barth acknowledged that his permit expired in a letter to the Town on July 5, 2015. (R. 35.) In that same letter Barth indicated that he intended to apply for a new building permit that would be "substantially the same" as his prior one except for "slight enlargement to the guesthouse structure." (R. 35.)
Over one year later, on August 16, 2016, Barth applied for a new building permit. (R. 38-41.) Glen Charette, the current CEO, notified Barth by letter that his 2016 application was incomplete because it did not provide, among other things, a structural engineer's stamp of approval, a surveyor's letter confirming that the current construction exists entirely within the allowable building envelope, a method for heating the structure, or information concerning how potable water would be provided to the residence. (R. 42.) During the review process, CEO Charette discovered that the building envelope violated the Town's Shoreland Zoning Ordnance because it was eighteen inches closer to the water than what is allowed. (R. 2.) The Town notified Barth of this violation on March 3, 2017. (R. 2.) Barth has not submitted the materials requested. (R. 2.)
CEO Charette ultimately denied the 2016 permit application, a decision Barth appealed to the Waterboro Zoning Board of Appeals ("Board") on November 1, 2017.
The Board held a public hearing at which it had a quorum on May 24, 2018. Barth, CEO Charette, and four nearby property owners testified. (R. 1.) The Board voted unanimously (four to zero) to affirm the CEO's finding that Barth's original, 2005 building permit had expired and uphold requirement that Barth provide an engineer's certification for the existing piers. (R. 3.)
Barth filed the instant complaint on July 6, 2018, appealing the Board's denial of his application and seeking damages. Accompanying the thirty-page complaint were three "memoranda of law" and exhibits totaling an additional eighty-three pages.
Because a timely responsive pleading had not been filed, a default was entered by the clerk upon plaintiff's request on August 8, 2018. Defendants subsequently moved to lift the default on the ground that plaintiff had not served them in accordance with the Maine Rules of Civil Procedure. Defendants' motion was granted and the default lifted. See 9/14/2018 Order Setting Aside Default. After being properly served, defendants filed their answer on October 9, 2018.
Thereafter, plaintiff filed numerous motions and other materials, including a "Motion to File Record for Count I" submitted on October 9, 2018 in which plaintiff asserted that he was "only today made aware that under Rule 80B(g), forwarding of the record of municipal action of which Count I is an appeal is done by the plaintiff rather than the municipality." Motion to File Record for Count I, at 2. The record of a municipal board's proceeding being appealed under Rule 80B must be filed no later than the filing of the briefs, which are due 40 days after the filing of the complaint. M.R. Civ. P. 80B(e)(1), (g). Plaintiff's deadline under Rule 80B(e) for filing a brief (and the record) had been August 15, 2018.
Defendants subsequently opposed the motion to file the record and moved for dismissal under Rule 80B(h) for failure to comply with Rule 80B's requirements regarding the filing of the record.
On October 12, 2018, plaintiff filed a document entitled, "Plaintiff Filing of Record on Appeal as assembled and attested to by Defendant Town of Waterboro." The documents submitted included a cover memo from the administrative assistant for the Board that states: "Per the verbal request of John Barth on October 10, 2018 for ZBA records of the [May 24, 2018] meeting, he reviewed and received the attached." The records consisted of approximately fifty-seven pages, which included a sign-up sheet, an agenda, an exhibit list, a copy of the 2005 permit, the 2016 application, correspondence, memos, photographs, the Board's May 24, 2018 written decision, and other items. The contents are not sequentially paginated or otherwise easily referenced.
In light of the number and content of the filings made in the case as well as the apparent confusion about how to classify Barth's claims, the court issued an order on March 8, 2019 intended to clarify the nature of the proceeding, address pending motions, and establish a schedule going forward. See Order Addressing Pending Motions and Other Matters, dated March 8, 2019 ("March 8th Order"). The March 8th Order:
• Determined that despite being docketed as an "RE" matter, the action constituted a Rule 80B appeal (Count I) with two independent claims joined (Counts II and III).
• Stayed consideration of Count II and Count III pending resolution of Count
• Deferred ruling on defendants' motion to dismiss for plaintiff's non-compliance with Rule 80B(e) and (g) until after hearing, which was to be held "after a complete record has been submitted and the parties have briefed all issues."
• Set a briefing schedule, with the final brief (plaintiff's reply brief) due July 5th and a hearing to be set on the first date available after that date.
• Provided that "the record shall be finalized and filed" by April 18, 2019 and that "[p]laintiff is responsible for doing so in accordance with Rule 80B(e). March 8th Order, at 6 (emphasis added).
• Further provided that "[i]f the parties cannot agree on the contents of the record, each may submit materials to compose the record and may also submit, if appropriate, objections to the other's submission." Id. (emphasis added).
• And, emphasized that plaintiff, a self-represented litigant, is not excused from compliance with procedural rules and that, although "the court had afforded some leeway" up to this point in the case, "going forward compliance with rules
will be enforced." Id., at 3.
On March 25, 2019, plaintiff filed a document entitled, "An "Affidavit of Continuing Organized Crime by Defendants" and another entitled, "Plaintiff Filing of Record on Rule 80B Appeal for Count I of the Complaint." The latter stated, in part: "Due to dishonest counsel for defendants, no agreement as to the record is likely. Therefore the Plaintiff hereby submits the record . . . already filed in this matter, with the Plaintiff notes filed therewith, and the Plaintiff Exhibits pertaining to the Rule 80B proceedings and already so filed...." Plaintiff Filing of Record on Rule 80B Appeal, at 1.
In this affidavit, plaintiff describes various acts of vandalism against property he owns in Springvale that he believes was the work of individuals having some connection with defendants. Similar claims are the subject of numerous subsequent affidavits filed in this action.
Defendants objected to the record filed and moved again on April 16, 2019 to dismiss Count I on account of plaintiff's failure to comply with M.R. Civ. P. 80B(e) and (g) and the March 8th Order. Plaintiff did not file an opposition to the motion, but did file on April 16, 2019 a motion for summary judgment on Count I of the complaint.
On May 31, 2019, the court mailed a notice of hearing to the parties on May 31, 2019 setting the hearing for July 11, 2019 at 1:30 pm.
Pursuant to the May 31st notice, hearing was held on July 11, 2019 at 1:30 pm. Counsel for defendants appeared. Plaintiff did not appear. Defendants requested that plaintiff be defaulted as to Count I and that the independent claims in Counts II and III also be dismissed. The court took the matter under advisement and requested counsel to submit cases cited at hearing to support counsel's argument for dismissal of the two independent claims in these circumstances.
Four days later, on July 15, 2019, plaintiff filed a request for a "continuance," stating: "The Plaintiff recently returned to Maine from Massachusetts and Florida, and found the schedule of this Court, including a hearing in this matter 7/11/2019, and therefore hereby apologizes and requests that the hearing be continued so that he can be present." Request for Continuance, dated July 13, 2019.
The court scheduled and held a hearing on December 12, 2019 to address all pending motions.
II. Discussion
Self-represented litigants are subject to the same standards as represented parties and are not afforded a "bending of the rules" or "special consideration" when it comes to following basic rules of procedure in litigation. Clearwater Artesian Well Co., v. La Grandeur, 2007 ME 11, ¶ 8, 912 A.2d 1252; Brown v. Thaler, 2005 ME 75, ¶ 9, 880 A.2d 1113;Truman v. Browne, 2001 ME 182, ¶ 11, 788 A.2d 168; Dumont v. Fleet Bank of Maine, 2000 ME 197, ¶ 13, 760 A.2d 1049; Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994). The March 8th Order was issued, in part, to emphasize this point and to caution plaintiff that he would be expected to comply with procedural rules going forward.
Notwithstanding this caution, plaintiff has not complied with the rules governing this proceeding. Defendants have moved to dispose of both the summary judgment motion and the Rule 80B appeal on this basis alone.
In addition, it is noted that plaintiff has not offered a good excuse for his failure to appear at the hearing on July 11th (at which defendants' counsel requested dismissal of the action). The March 8th Order clearly stated a hearing would be scheduled in this matter on the first date available after July 5, 2019, the date plaintiff's reply brief was due. A notice of hearing was sent to both parties on May 31st. At the December 12th hearing, plaintiff initially said he had not received notice because he was out of state, "otherwise I would have been here." After farther discussion, it appears he, in fact, had returned to Maine at least a week or two before the July 11th hearing. He filed his reply brief on July 10th, the day before the hearing (and five days after the July 5th deadline specified in the March 8th Order). He simply has not offered a good reason for his failure to appear. On this basis alone his motion for summary judgment and Rule 80B appeal in Count I could have been dismissed, but the court has declined to do so.
1. Motion for Summary Judgment (Count X)
On April 16, 2019, just over a month after issuance of the March 8th Order, plaintiff filed a motion for summary judgment with respect to Count I with an incorporated memorandum of law. As filed on April 16th, the motion was not accompanied by a supporting statement of material facts as required by M.R. Civ. P. 56(h). However, plaintiff had filed earlier (on October 9, 2018) a document entitled, "Statement of Material Facts As To Which There Is No Genuine Dispute to accompany Motion for Summary Judgment" ("October SMF").
As an initial matter, summary judgment is not an appropriate remedy with respect to Count I, which is an appeal of governmental action pursuant to Rule 80B. As discussed below, Rule 80B, and in particular Rule 80B(e), prescribes the process for compilation of the record that serves as the basis for the court's review of action taken by a governmental entity whose action is being appealed. A summary judgment motion is adjudicated on a different basis—a factual record formulated in accordance with M.R. Civ. P. 56(h)—and under a different legal standard.
Plaintiff has not requested a trial on the facts under Rule 80B(d), and therefore the record on appeal in connection with Count I is confined to the record before the Board.
Even if the court were to entertain the summary judgment motion, it is fatally flawed because plaintiff has not complied with the requirements of Rule 56. Parties filing summary judgment motions are expected to comply strictly with the requirements of the rules. Deutsche Bank Nat'l Trust Co. v. Raggiani, 2009 ME 120, ¶ 7, 985 A.2d 1 ("In the unique setting of summary judgment, strict adherence to the Rule's requirements is necessary to ensure that the process is both predictable and just.") (citation omitted).
Rule 56(h) provides: "In addition to the material required to be filed by Rule 7, a motion for summary judgment . . . shall be supported by statements of material facts as addressed in paragraphs (1), (2), (3), & (4) of this rule. M.R. Civ. P.. 56(h). Plaintiff has failed to comply with requirements of Rule 7 and Rule 56.
First, the motion fails to include the notices expressly mandated in Rule 7(b)(1)(A) and (B). See M.R. Civ. P. 7(b)(1)(A) (commanding that a motion for summary judgment shall include notice that opposition must be filed within 21 days unless otherwise ordered by court); 7(b)(1)(B) (requiring such a motion to include notice that any opposition must comply with the requirements of Rule 56(h)).
Second, plaintiff's motion failed to comply with Rule 56(h)(1), including the requirement that a motion for summary judgment be supported by a separate, short and concise statement of material facts and that each fact asserted "be supported by a record citation as required by paragraph (4) of this rule." M.R. CIV. P. 56(h)(1). The motion for summary judgment filed on April 16, 2019 was not accompanied by a statement of material fact, and the numbered paragraphs in the motion itself do not qualify as supported statements of fact under Rule 56(h).
While plaintiff did file the October SMF, it is defective as a supporting statement of material fact under Rule 56(h)(1). Of its twenty-six paragraphs, nineteen are unsupported by record citations. "The absence of supporting record references in the statement of material facts is fatal to a motion for summary judgment." Levin v. R.B.K. Caly Corp., 2001 ME 77, ¶ 9, 770 A.2d 653. In addition, many of the remaining paragraphs that purport to cite to supporting record material still do not comply with Rule 56(h).
For example, paragraph 1 recites, "The subject property was purchased by the Plaintiff in 2001", and cites to "Exhibit 30." The exhibit is not attached. There was no "Exhibit 30" listed in the record before the Zoning Board of Appeals. Nor was an "Exhibit 30" included with other exhibits attached to the legal memoranda filed at the outset of the case with plaintiff's complaint. The document filed on March 25th entitled "Plaintiff Filing of Record on Rule 80B Appeal" included a list and description of exhibits, and this list references Exhibit 30 as having been "filed with the Complaint", along with a number of other exhibits numbered 1 through 121. Apart from the exhibits accompanying the third legal memorandum filed at that time as the complaint, no other exhibits were filed. As just noted, Exhibit 30 was not among them. Thus, despite paragraph 1's citation to an exhibit, it does not appear that this exhibit is in the record. The court has "no independent duty" to search or consider any part of the record not properly presented in compliance with Rule 56(h). M.R. Civ. P. 56(h)(4).
Accordingly, the motion for summary judgment is denied.
2. Rule 80B Appeal (Count I)
a. Defendants' Motion to Dismiss
Rule 80B(e) explicitly states that "the parties shall meet in advance of the time for filing the plaintiff's brief . . . to agree on the record to be filed. M.R. Civ. P. 80B(e)(2) (emphasis added). The March 8th Order was clear that the "record" plaintiff had filed in October 2018 was not acceptable because it did not meet the requirements of Rule 80B(e). It is plaintiff's responsibility to finalize the record. M.R. Civ. P. 80B(e) ("[I]t shall be the plaintiff's responsibility to ensure the preparation and filing with the Superior Court of the record of proceedings of the governmental agency being reviewed[.]" (emphasis added)).
Plaintiff did not follow Rule 80B(e) and failed to comply with the court's order. His March 25th filing ("Plaintiff Filing of Record of on Rule 80B Appeal") stated that the record "already filed in this matter" in October 2018, together with "Plaintiff's notes filed therewith" and a number of exhibits, constitute the record in this case. His reason for not complying with the rule and the court's order was that "[d]ue to dishonest counsel for defendants, no agreement is likely." Plaintiff Filling of Record on Rule 80B Appeal, at 1.
The bare assertion that "no agreement as to the record is likely," without any attempt to do so on his part, is unacceptable. Defendants' counsel invited plaintiff to meet and confer regarding the record, even after having been disparaged by plaintiff's filing. Plaintiff offers no good reason for his failure to do so. His representations to the court at oral argument that he did make an effort to contact counsel are belied by the record and are not credible.
Preparation of an appropriate record for review of governmental action is a fundamental requirement for effective judicial review. Rule 80B(f) provides that "[e]xcept as otherwise ordered by statute or by order of the court . . . review shall be based upon the record of the proceedings before the governmental agency." M.R. Civ. P. 80B(f) (emphasis added). The record in a Rule 80B appeal consists only of the record before the municipal board whose action is being challenged. Here, the "record" unilaterally filed by plaintiff in October 2018 purports to be materials provided to him by the Town of Waterboro, but his March 25th filing references "notes" and a number of other exhibits which may or may not have been part of the record that was before the Board. The confusion that has resulted as a consequence of plaintiff's unilateral submission of the "record" is precisely why it is imperative that parties confer in advance of filing—viz., so that it is clear what documents were actually before the Board and properly before the court on appeal.
The court has discretion to dismiss an appeal for noncompliance with Rule 80B(e). See M.R. Civ. P. Rule 80B(h) ("If the plaintiff fails to comply with subdivision (e) or (g) of this rule, the court may dismiss the action for want of prosecution."). Although defendants have so moved, the court declines to do so, in part because defendants have submitted a record that made it feasible to review the appeal in Count I.
b. Merits of the Appeal
The court's review of a municipal board's decision under Rule 80B is deferential and limited. Beal v. Town of Stockton Springs, 2017 ME 6, ¶ 13, 153 A.3d 768. The party appealing the decision must establish that the municipal board abused its discretion, committed an error of law, or reached findings or conclusion not supported by substantial evidence in the administrative record. Bryant v. Town of Wiscasset, 2017 ME 234, ¶ 11, 176 A.3d 176. In this context, "substantial evidence" exists if there is any evidence in the administrative record that a reasonable mind would accept as sufficient to support the municipality's conclusion. Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 8, 746 A.2d 368.
The Board concluded that Barth's last-issued building permit expired in 2007; no new or replacement permit was requested until 2016; a new building code had been adopted in the interim (2015); and any new building permit application would be required to meet the standards of the new building code. The Board further concluded that the CEO was authorized to require, and acted appropriately in this case by requiring, submission of information relevant and necessary to satisfy these standards, including submission of an engineer's certification for existing piers on the site. In support of these conclusions, the Board made a number of findings based on testimony and evidence presented at the May 24, 2018 hearing.
There is competent evidence to support the Board's findings and conclusions, and the Board did not abuse its discretion or commit an error of law. Plaintiff's initial building permit was issued in 2005. It allowed for a single, two-year extension. Plaintiff did not file to renew this permit before (or after) it expired in 2007. He was notified by letter twice in 2012 that his permit had expired and he would need to apply for and obtain a new permit in order to resume construction. He did not submit a new application until 2016. The 2016 application was properly deemed incomplete.
Further, plaintiff's arguments that he had a vested right to continue construction under an expired building permit and/or that the Town is equitably estopped from denying his application for a second permit fail.
The vested rights doctrine provides that a municipality may not enact a new regulation or ordinance and apply the new regulation or ordinance to defeat or invalidate an existing (i.e., unexpired) building permit issued under prior law. See Peterson v. Town of Rangeley, 1998 ME 192, ¶ 12 n. 3, 715 A.2d 930 (holding that rights vest when a municipality applies a new ordinance to an existing permit") (emphasis in original). That is not the case here. Plaintiff's permit expired in 2007—a fact of which he was well aware, having been so informed by Town officials on several occasions. He did not re-apply for nine years. Moreover, neither application for nor issuance of a permit, in and of itself, is sufficient to confer vested rights. Kittery Retail Ventures, LLC v. Town of Kittery, 2004 ME 65, ¶ 24, 856 A.2d 1183.
While bad faith or discriminatory enactment of an ordinance to prevent legal use of property may operate to confer vested rights in limited circumstances, this typically arises in situations where a municipality enacts or purports to apply a new ordinance to an existing permit and thereby constrict use of the property. That is not the case here. The record evidence here does not otherwise support such a claim of this nature. See Kittery Retail Ventures, 2004 ME 65, ¶¶ 24-29, 856 A.2d 1183 (reviewing case law concerning the equitable acquisition of vested rights).
The cases plaintiff cites to support his vested rights argument are inapposite or distinguishable. See Sahl v. Town of York, 2000 ME 180, ¶ 14, 760 A.2d 266 (holding that permittee's rights had vested because the building permit had no expiration date); Crosby v. Belgrade, 562 A.2d 1228, 1229 (Me. 1989) (holding that zoning board of appeals final adjudication that nonconforming lots were grandfathered from subsequently enacted ordinance changes had preclusive effect on any future action by town); Littlefield v. Lyman, 447 A.2d 1231, 1235 (Me. 1982) (holding that applicant for subdivision approval—not a building permit—was entitled to have board evaluate application under ordinances in effect at the time the application was accepted); Thomas v. Zoning Bd. of Appeals, 381 A.2d 643, 647 (Me. 1978) (holding that permit applicant acquired no right to the application of a repealed zoning ordinance).
Likewise, the doctrine of equitable estoppel does not apply here. Equitable estoppel may be asserted against a governmental entity as a defense to an enforcement or other action taken by that entity. Tarason v. Town of South Berwick, 2005 ME 30, ¶ 16, 868 A.2d 230 (holding that equitable estoppel can be asserted against a municipality only as a defense and "cannot be used as a weapon of assault.") (citing Buker v. Town of Sweden, 644 A.2d 1042, 1044 (Me. 1994)); see Dep't of Health & Human Servs. v. Pelletier, 2009 ME 11, ¶ 17, 964 A.2d 630. Plaintiff seeks here to use the doctrine offensively—to compel the Town to act—rather than defensively against an enforcement action by the Town.
Even if the court applied equitable estoppel principles to this case, plaintiff could not meet the heightened burden of establishing that (1) statements of a Town official induced him to act; (2) his reliance was detrimental; and (3) the reliance was reasonable. See Kittery Retail Ventures LLC, 2004 ME 65, ¶ 34, 856 A.2d 1183 (holding that invocation of doctrine to estop enforcement of a zoning ordinance carries "greater burden" because "forceful policy reasons militate against restricting the enforcement of municipal zoning ordinances.") (citing City of Auburn v. Desgrosseilliers, 578 A.2d 712, 715 (Me. 1990)). The record simply does not support the contention that plaintiff reasonably relied to his detriment on statements or actions of the Town or its officials. Town officials explicitly, and in writing, informed plaintiff his building permit had expired in January 2007, April 2012, and August 2012. As the Board found, there was no record evidence to support plaintiff's claim that former CEO Berry had given him "verbal approvals" in 2007 as to inspections and/or an informal extension of his 2005 building permit.
III. Conclusion and Order
For the reasons set out above, the court denies plaintiff's motion for summary judgment (Count I) and Rule 80B appeal (Count I); and dismisses defendant's motion to dismiss as moot. Because consideration of Counts II and III have been stayed by the March 8th Order, the court also denies defendants' request to dismiss Counts II and III at this time without further proceedings. The court will consider any such requests going forward upon appropriate motion(s) filed by defendants.
Accordingly, it is hereby ordered and the entry shall be: "Plaintiff's Motion for Summary Judgment (Count I) is DENIED. Plaintiffs' Rule 80B appeal (Count I) is DENIED. Defendants' motion to dismiss Count I is DISMISSED as moot."
The clerk may enter this Decision and Order on Rule 80B Appeal & Plaintiff's Motion for Summary Judgment (Count I) on the docket by reference pursuant to M.R. Civ. P. 79(a). SO ORDERED Dated: January 21, 2020
/s/_________
Wayne R. Douglas
Justice Superior Court